SHYAMLAL Vs. CHAMELIBAI

JUDGEMENT

(1.) Plaintiff/appellant's case in brief is, that Laxmibai was owner and in possession of the suit property and defendant Chamelibai and her neighbour, they had cordial and good relations; Chamelibai was frequent visitor to the Laxmibai's house and used to take care of her. Laxmibai was an old lady of 80 years of age. ln Oct., 1982 Laxmibai fell ill and taking advantage of her relation, ill health, old age of Laxmibai the defendant got sale deed executed in her favour on 18.10.1982 (Ex. D.1) without payment of any consideration. When Laxmibai could understand serious implication of the deed executed by her she sent a notice through her lawyer on 11.12.1982 (Ex. P.3) demanding reconveyance of the house. Said notice was replied by the defendant Chamelibai on 24.12.1982. It is further alleged that Laxmibai executed registered 'Will' bequthing suit house in favour of the plaintiff/appellant on 6.1.1983(Ex. P.1).On the same day i.e. on 6.1.1983 a registered Power of Attorney (Ex. P.2) was also executed in favour of the plaintiff/appellant by Laxmibai; whereby he was given authority to take all necessary steps in respect of the suit property. After the death of Laxmibai on 28.2.1984, the plaintiff has become owner of the suit house by virtue of 'Will' executed in his favour, and therefore, plaintiff has filed a suit on 21.1.1985 to remove the clouds cast on his title by virtue of the alleged sale-deed executed under the undue influence of the defendant, without payment of the consideration by Laxmibai. The plaintiff claimed a relief that the sale-deed executed on 18.10.1982(Ex. D.1) by Laxmibai in favour of defendant Chamelibai be declared void and ineffective against the plaintiff. A further relief of declaration of his title on the basis of the 'Will' was claimed by the plaintiff by amendment. The relief of injunction restraining the defendant from interfering with the possession of the plaintiff was sought for. As per the defendant, the sale-deed was executed in exercise of 'free-will' of Laxmibai without there being any undue influence, for consideration, and the defendant has acquired valid title by virtue of that sale-deed. The trial Court had dismissed the suit of the plaintiff against which the present appeal is filed.

(2.) The real controversy in the case is whether Laxmibai executed the sale-deed without there being any undue influence of the defendant and for the consideration referred in the sale-deed. The question of title of the defendant will be required to be gone into, if the sale-deed executed in favour of the defendant is declared void and 'not binding on Laxmibai and consequently upon the plaintiff. This being so because the defendant is claiming title to the suit house under the 'Will' executed on the subsequent date of the deed of sale; by virtue of 'Will' dated 6.11.1983 and which has been into operation on the death of Laxmibai on 28.2.1982.

(3.) Undue influence is implied, widen-(i) a person in whom confidence is reposed or holds real or apparent authority over the other, makes exercise of such authority or use confidence reposed, for the purpose of obtaining advantage which he could not obtain but for such authority or confidence; & (ii) person whose mind is enfeebled by old age, illness, or mental or bodily distress, is so treated as to make him consent to that to which, but for such treatment, he would not have consented, although such treatment may not amount to coercion. The court enquired to find out, whether undue influence is used, is to consider where the relations subsisting between the parties are such that one is in a position to dominate the will of the other and such person uses that position to obtain unfair advantage. Both these conditions ordinarily to be established by the parties seeking to avoid the transaction. Under section 16(2) of the Contract Act, there is a presumption of deemed position of dominance of the will of another. If a person holds real or apparent authority over another, or his relation with another stands fiduciary or where a person makes a contract with another whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress.